Did You Know...

My friend Debra Burlingame was at last week’s meeting between President Obama and 9/11 and Cole bombing families. 9/11 Families for a Safe and Strong America reports: “During the meeting, President Obama was wrong on the law, wrong about what Boumediene v. Bush afforded the detainees held at Guantanamo, and stated the public’s perception about Guantanamo is confused with Abu Ghraib.” Obama also admitted that Gitmo is “a pristine, professional operation.”

If we didn’t already have Gitmo, we’d have to invent it. There really is a war going on out there. President Obama admitted as much in his inaugural address, to the unspoken dismay, no doubt, of his most ardent supporters. We cannot rely very much on other countries to protect our national security.

It has never been possible, nor thought possible, to win a war in court. There are simply too many jihadists, with the vast majority operating outside the jurisdiction of our laws. When we are fortunate enough to nab one, that usually happens under fog-of-war conditions not conducive to Miranda warnings, police evidence-collection protocols, and the like. And it bears keeping in mind that the purpose of an American trial is to force the government to meet a very high burden of proof in a system developed for the benefit of American citizens enjoying the presumption of innocence. That is why we say we would prefer to see the government fail—i.e., prefer to see the guilty go free—than to see an innocent person wrongly convicted.

War is different. A war is fought—meaning that people are killed and prisoners taken—in order to achieve vital national objectives, particularly the protection of American lives. In that context, we cannot prefer to see the government fail. We need the government to prevail, or our lives and the rights we cherish are in jeopardy. That doesn’t mean the enemy doesn’t get due process, particularly if we decide to put some of them on trial for war crimes rather than simply detaining them for the duration of the conflict. There is, however, a reason it is called due process, rather than, say, trial process. We owe only the process that is due in the particular circumstances. War and peace are not the same circumstance. The process due Americans accused of crimes in civilian courts is not the same as the process due foreign combatants and terrorists captured during military operations.